Judge Michael E. Whitaker, Case Number: 21SMCV01474, Date: 2023-08-17 Tentative Ruling

Judge: Michael E. Whitaker, Case: 21SMCV01474, Date: 2023-08-17 Tentative Ruling

Plaintiff Lani Hay (“Plaintiff”) is the record owner of the condominium unit located at 1012 2nd Street, Unit 1 in Santa Monica (the “Property”). (Complaint, ¶ 1.) The Property is part of a common interest development governed by the 1012 2nd Street Homeowners Association (“HOA”). (Id. at ¶ 2.) On April 8, 2020, Lauren Prakke (“Prakke”), who owned Unit 2 located directly above the Property, left her bathtub running until it overflowed. That incident caused water to flow through the walls and ceiling of Plaintiff’s Property directly below, resulting in damage to Plaintiff’s Property. (Id. at ¶ 22.)

Plaintiff is a member of the HOA by virtue of her ownership of the Property. (Complaint, at ¶ 17.) The common interest development was by developed by Defendant 1012 2nd Street LLC (“LLC”), which owns two units within the development. (Id. at ¶ 20.) Defendants Soheil Mehrabanian (“Mehrabanian”) and Saeed Babaeean (“Babaeean”) are the owners of the LLC and served as the sole Board members of the HOA for much of the timeframe alleged in the Complaint. (Id. at ¶¶ 5-6, 27-28, 35, 41-42, 45, 59-60.) Plaintiff further alleges that the LLC was and continues to be the alter egos of Mehrabanian and Babaeean, and there existed a unity of interest and ownership between the LLC, Mehrabanian and Babaeean. (Id. at ¶¶ 9-12.)

In addition, “In its responses to Special Interrogatory Nos. 10 through 12, LLC states that it created the HOA and that LLC is an HOA member, as it owns Units 3 and 4 located within the HOA development. Notably, in LLC’s response to Special Interrogatory No. 25, LLC states that it owned Units 3 and 4 within the development and that the owners of LLC, Mehrabanian and Babaeean, became Board of Director members as representatives of the owner/member LLC. Further, in its responses to Special Interrogatory Nos. 26 and 27, LLC states that Mehrabanian and Babaeean became Board of Director members as owners of the LLC that owns Units 3 and 4.” (See Declaration of Nicholas J. Tomic, ¶¶ 7-8, Exhibit 6.)

Plaintiff moves the Court for orders compelling Defendants THE LLC, Mehrabanian and Babaeean (collectively, “Defendants”) to serve further responses to the following discovery requests:

1. Requests For Production of Documents (“RFP”), Set 1, Propounded to Defendants Mehrabanian and Babaeean

2. Requests For Production of Documents (“RFP”), Set 1, Propounded to Defendant LLC

Defendants have filed oppositions to the motions; Plaintiff has filed replies to the oppositions.

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: . . . (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Record of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. . . . (g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. . . .” (Evid. Code, § 452, subds. (c)-(d), (g)-(h); Trinity Park, L.P. v. City of Sunnyvale (2011) 193 Cal.App.4th 1014, 1027 [“ the general rule that when judicial notice is taken of a document the truthfulness and proper interpretation of the document are disputable” (cleaned up)], disapproved on other grounds in Sterling Park, L.P. v. City of Palo Alto (2013) 57 Cal.4th 1193.)

Here, Plaintiff requests that the Court take judicial notice of (a) Declaration of Covenants, Conditions, and Restrictions for 1012 2nd Street Homeowners Association, filed and recorded on March 4, 2016 as Instrument No. 20160240017 in the Official Records of the County of Los Angeles; (b) HOA’s Registration of Unincorporated Common Interest Development Association filed with the California Secretary of State on June 3, 2022; (c) the LLC’s Statement of Information filed with the California Secretary of State on September 28, 2022; and (d) the LLC’s Complaint filed on October 24, 2022 against Plaintiff, Case No. 22STLC07062.

Regarding Plaintiff’s Request 1-3, judicial notice of recorded documents is proper under Evidence Code section 452, subdivision (h) as facts and propositions not reasonably subject to dispute that are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) “The official act of recordation and the common use of a notary public in the execution of such documents assure their reliability, and the maintenance of the documents in the recorder’s office makes their existence and text capable of ready confirmation, thereby placing such documents beyond reasonable dispute.” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-65.) But, while a court may take judicial notice of a recorded document, it may not take judicial notice of factual matters stated therein. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC, supra, 152 Cal.App.4th at p. 1117.)

As to Plaintiff’s Request 4, “[w]hile courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files. Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].)

Pursuant to Evidence Code sections 452 and 453, the Court grants Plaintiff’s unopposed request for judicial notice of Exhibits 2, 13, 14, and 15 attached to the Declaration of Nicholas J. Tomic, subject to the limitations set forth above.

A notice of motion to compel further responses must be “given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which” the parties have agreed in writing. (Code Civ. Proc., § 2031.310, subd. (c).) Failure to file such a motion within this time period constitutes a waiver of any right to compel further responses to demands for production of documents. (Ibid.)

Here, Plaintiff filed the motions on the date set forth above. Defendants have not objected to the timeliness of the motions.

A motion to compel must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (Code Civ. Proc., § 2031.310, subd. (b)(2).) A meet and confer declaration must state facts showing a reasonable and good-faith attempt at an informal resolution of each issue presented in the motion. (Code Civ. Proc., § 2016.040.)

“The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue. This rule is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity of a formal order. . . . This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1434-1435, citations omitted [cleaned up].) To comply, “A reasonable and good-faith attempt at informal resolution entails something more than bickering with [opposing counsel]. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Townsend, supra, 61 Cal.App.4th at p. 1439; see also Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 [to satisfy the attempt at informal resolution required in section 2016.040 opposing parties must do more than try to persuade each other of their errors].) In short, the Discovery Act “requires that there be a serious effort at negotiation and informal resolution.” (Townsend, supra, 61 Cal.App.4th at p. 1438.)

To that end, trial courts are entrusted with discretion and judgment to determine the necessary effort required to satisfy the requirement of an informal resolution. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 433.) In determining if parties have satisfied Section 2016.040, judges may consider “the history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.” (Id. at pp. 431-432 [holding that the trial court was correct in determining that sending a letter with oppositions was an insufficient attempt at an informal resolution].) In sum, meet and confer efforts should go beyond merely sending letters to each other stating each party’s respective positions.

Here, as set forth in the Declaration of Nicholas J. Tomic, counsel for Plaintiff, the Court finds that Plaintiff has engaged in a reasonable and good faith attempt at an informal resolution of the issues presented in the motions. (See Declaration of Nicholas J. Tomic, ¶¶ 13-22, Exhibits 16-22.) [1]

California Rules of Court, rule 3.1345 requires that any motion involving the content of discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for why an order compelling further responses is warranted.

Here, Plaintiff has filed separate statements related to each motion which complies with Rule 3.1345.

“The purpose of the discovery rules is to enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise. In other words, the discovery process is designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” (Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal.App.4th 377, 389 [cleaned up].)

Where a party objects, or responds inadequately, to discovery requests, a motion lies to compel further responses, and that party has the burden to justify the objections or inadequate responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Code Civ. Proc., § 2031.310, subd. (a) [motion to compel further responses lies “[o]n receipt of a response to a demand for inspection”].) “A trial court's determination of a motion to compel discovery is reviewed for abuse of discretion. However, when the facts asserted in support of and in opposition to the motion are in conflict, the trial court's factual findings will be upheld if they are supported by substantial evidence.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [cleaned up].)

With respect to demands for inspection of documents or other items, the Discovery Act provides as follows:

The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item. (3) An objection to the particular demand for inspection, copying, testing, or sampling.

(Code Civ. Proc., § 2031.210, subd. (a).) “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc., § 2031.230.)

“The state Constitution expressly grants Californians a right of privacy. Protection of informational privacy is the provision’s central concern. . . . The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. ^{^[2]} The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [cleaned up].)

“Legally recognized privacy interests [include] interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’) . . . .” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) “A particular class of information is [sensitive or confidential] when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity.” (Ibid.)

Foremost, the Court notes that note that neither Mehrabanian nor Babaeean explicitly asserted right to privacy objections to the subject discovery requests. Instead Mehrabanian and Babaeean responded as an example: “Objection on the grounds that the information is neither relevant to this action nor calculated to lead to admissible or relevant evidence. My private LLC’s capital contributions has nothing to do with the HOA or Plaintiff’s claims.” (See, e.g., Declarations of Nicholas J. Tomic, Exhibits 5, RFP Nos. 4, 5, 39, 40, 41.) Nevertheless, the Court finds that both Defendants have substantially complied with the Discovery Act and have not waived the right to privacy objection.

Yet, none of the Defendants have made an adequate showing that responding to the RFP invades their or other third-parties’ right to privacy, warranting protection from disclosure. First, Defendants have not produced privilege logs which would identify any responsive documents being withheld because of privacy grounds. Equally important, in opposition to the motions, Defendants have failed to proffer sufficient, competent evidence to establish that the right to privacy thwarts Plaintiff’s efforts to obtain documents responsive to the RFP.

In general, “unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Code Civ. Proc., § 2017.010.)

And with respect to a claim of alter ego liability, a party “[i]s entitled to discovery to pursue the above alter ego allegations and its other theories of contractual liability and fraud . . . .” (Warburton/Buttner v. Superior Court (2002) 103 Cal.App.4th 1170, 1189; see also Los Angeles Cemetery Assn. v. Superior Court of Los Angeles County (1968) 268 Cal.App.2d 492 [discovery sought to enable purchaser to plead alter ego theory was proper].)

Plaintiff argues in the moving papers that she is entitled to conduct discovery regarding her allegations that Mehrabanian and Babaeean are the alter egos of the LLC. The Court agrees. Further, the Court notes that in their oppositions, Defendants failed to address this point and thus the Court finds that Defendants tacitly concede that Plaintiff is permitted to conduct discovery related to the alter ego allegations set forth in the complaint.

In short, the Court finds that Defendants’ objections the RFP Nos. are largely unmeritorious. Turning to the issue of whether Defendants have provided code compliant responses to the RFP, the Court rules as follows:

· RFP No. 39: DENIED – Response is compliant with Code of Civil Procedure section 2031.230.

· RFP No. 42: DENIED – Response is compliant with Code of Civil Procedure section 2031.230.

A trial court may sanction a party for engaging in the misuse of discovery, which includes: failure to respond or submit to an authorized method of discovery; making an evasive response to discovery; making, without substantial justification, an unmeritorious objection to discovery; and making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. (Code Civ. Proc., § 2023.010.)

In addition, Code of Civil Procedure section 2031.310, subdivision (h) provides: “”Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Foremost, per Code of Civil Procedure section 2023.040, “[a] request for a sanction shall, in the notice of the motion, identify every person, party, and attorney against whom the sanction is sought.” In Plaintiff’s notice of motion, Plaintiff states in pertinent part: “Hay requests the Court to impose monetary sanctions against [Defendants] and [his/its] counsel, jointly and severally, for his ongoing and willful abuse of the discovery process.” Although the Court finds the language to be sufficient notice for requesting sanctions against Defendants, the Court finds the language to be insufficient notice for requesting sanctions against counsel for Defendants. [3]

Here, Plaintiff seeks monetary sanctions in connection with the motions based upon Defendants’ failure to provide complete, substantive responses to the subject discovery requests. The Court finds Defendants’ failure to provide code compliant responses to be an abuse of the discovery process, warranting monetary sanctions. Accordingly, the Court will impose monetary sanctions against each Defendant in the amount of $1675.00 which represents five hours of attorney time to prepare the moving and reply papers, and attend the hearing, at $335 per hour.

Therefore, the Court grants Plaintiff’s motions to compel further responses per Code of Civil Procedure section 2031.310, and orders Defendants to serve further verified and code compliant responses to the Requests for Production of Documents, Set 1, as noted above, within 20 days of notice of the Court’s orders.

Further, the Court orders each Defendant to pay monetary sanctions in the amount of $1675.00 to Plaintiff, by and through counsel for Plaintiff, within 20 days of notice of the Court’s orders.

Plaintiff shall provide notice of the Court’s orders and file a proof of service regarding the same.

[1] Counsel for Defendants, Joseph C. Watson, did not file a declaration disputing any of the representations of counsel for Plaintiff regarding the meet and confer efforts.

[2] “This initial inquiry is necessary to permit courts to weed out claims that involve so insignificant or de minimis an intrusion on constitutionally protected privacy interests as not even to require an explanation or justification by the defendant.” (Lewis v. Superior Court (2017) 3 Cal.5th 561, 571 [cleaned up].)

[3] “Where sanctions are sought against the opposing party's counsel, the notice of motion must expressly so state. It is not enough simply to attach declarations or a transcript showing that the deponent refused to appear or answer questions on counsel's advice.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 8:1985 (citing Blumenthal v. Superior Court (1980) 103 CA3d 317; Marriage of Fuller (1985) 163 CA3d 1070); see also id. at ¶ 8:1986 [“Where an award is sought against the attorney for advising the opposing party not to answer or respond, the notice of motion must identify the opposing counsel and state that sanctions are being sought against such counsel personally”].)

DEPARTMENT	207
HEARING DATE	August 17, 2023
CASE NUMBER	21SMCV01474
MOTIONS	Motions to Compel Responses to Requests for Production of Documents, Set 1
MOVING PARTY	Plaintiff Lani Hay
OPPOSING PARTIES	Defendants Saeed Babaeean, Soheil Mehrabanian, and 1012 2^nd Street, LLC